TUTORIAL – I

MOOT COURT EXERCISE AND INTERNSHIP

MOOT COURT PROBLEM – 1

SPECIAL LEAVE PETITION (CIVIL APPEAL)

SUBMITTED BY:
SIMRAN PRADHAN
PRN: 18010323122
DIV: B SEM: X

SUBMITTED TO:
DR. ANITA SABLE
ASSISTANT PROFESSOR

SYMBIOSIS LAW SCHOOL, HYDERABAD

CONSTITUENT OF SYMBIOSIS INTERNATIONAL UNIVERSITY, PUNE

IN THE MONTH OF
MARCH 2023
 LIST OF ABBREVIATIONS

AIR All India Reporter

Anr Another
Hon’ble Honourable
O.P (FC) Original Petition Family Case
Ors Others
SCC Supreme Court Cases
SLP Special Leave Petition
v. Versus
W.P. Writ Petition

INDEX OF AUTHORITIES
CASES

1. Gaurav Nagpal v. Sumedha Nagpal (2009)

2. Elizabeth Dinshaw v. Arvand Shaw Dinshaw, (1987) 1 SCC 42
3. Rosy Jacob v. Jacob A. Chakramakkal 1973 1 SCC 840
4. Anjali Kapoor vs. Rajiv Baijal (2009) 11 SCC 422
5. Suman Kapur v. Sudhir Kapur (2009)

BOOKS

1. C.K. Takwani, Civil Procedure Code with Limitation Act, 1963 (3rd Ed. 2017)
2. M.P. Jain, Indian Constitutional Law (3rd Ed. 2013)
3. Sir Dinshaw Fardunji Mulla, Mulla Hindu Law (21st Ed. 2013)
4. Dr. U.P.D. Kesari, Modern Hindu Law (10th Ed. 2015)

LEGAL DATABASES

1. Manupatra
2. SCC Online

LEGISLATIONS

1. The Indian Constitution, 1950

2. Guardians and Wards Act, 1980
3. Hindu Marriage Act, 1955
4. Civil Procedure Code, 1908
5. Indian Evidence Act, 1872

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 STATEMENT OF JURISDICTION

The counsel for the Petitioner hereby humbly submits to this Hon’ble court’s jurisdiction
under Article 1361 of the Constitution of Union of India.

IN THE SUPREME COURT OF INDIA

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Article 136 of Constitution of India – Special leave to appeal by the Supreme Court
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to
appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by
any court or tribunal in the territory of India
(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed or made by any
court or tribunal constituted by or under any law relating to the Armed Forces

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 CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION

(ORDER XVI RULE 4(1)(a))
(Under Article 136 of the Constitution of India)
SPECIAL LEAVE PETITION (CIVIL) NO. 24328 OF 2023
[Arising from the judgement and final order dated 24.07.2021 in OP (FC). No. 273/2021
passed by the Hon’ble High Court of Judicature of Madras at Chennai]

IN THE MATTER OF:

Shakhi,
No. 1, M.G. Street,
T. Nagar, Chennai - 600050
…Petitioner/Appellant

VERSUS

Mitra,
No. 20, Ratna Street,
Egmore, Chennai - 600020

…Respondent

TO:

HON’BLE THE CHIEF JUSTICE OF INDIA AND HIS COMPANION JUDGES OF THE
SUPREME COURT OF INDIA.

THE HUMBLE PETITION OF THE PETIONER ABOVE-NAMED

MOST RESPECTFULLY SHOWETH:

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 1. That the petitioner is filing this Special Leave Petition (Hereinafter referred to as
“SLP”) against the impugned and final order dated 24.07.2021 passed by the High
Court of Madras in OP (FC). No. 273/2021.

2. That the Petitioner herein is a resident of Chennai.

3. The present petition is being filed before this Hon’ble Court by way of SLP without
any having vested interest of the Petitioner. The Petitioner has borne all the expenses
of the present litigation from her own pocket.

4. A thorough research has been conducted on the subject matter and issues raised in the
present SLP by the Petitioner. To the best of the knowledge of the Petitioner, the
issues raised in the present litigation deal with substantial questions of law that the
Hon’ble High Court of Madras failed to consider with its true merits.

5. The Petitioner understands that during the course of present petition, the Hon’ble
Court may require any reasonable security to be furnished towards costs or any other
charges and the petitioner shall comply with such requirements.

6. The Respondent is Mr. Mitra, a businessman working in London and currently

residing at No. 20, Ratna Street, Egmore, Chennai - 600020.

BRIEF FACTS

The brief facts which give rise to the present SLP are as follows:

1. The marriage between the Petitioner and the Respondent was solemnized on
31.01.2009 under Hindu rites and customs, and they have a minor child named Rajesh
who was born out of wedlock. They lived together for 6 months before separating
due to misunderstandings between them. The copy of their marriage certificate has
been attached and marked herewith as ‘Annexure-A.’
2. The Petitioner filed for divorce on the ground of cruelty by the Respondent, and the
Respondent filed a petition for custody of their son under the Guardians and Wards
Act, claiming that the Petitioner had illegal intimacy with another person and that the

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 child’s education and well-being would be affected if he remained with the Petitioner.
The Respondent also claimed that he was financially more stable than the Petitioner
and hence should be granted custody.

3. The Family Court at Chennai granted a divorce in favor of the Petitioner in O.S. No.
239/2021 and awarded her custody of the child, finding that it was in the best interest
of the child. The court considered the oral and documentary evidence presented by
both parties, as well as the views of the child. The copy of this verdict has been
attached and marked herewith as ‘Annexure-B.’

4. The Respondent appealed the decision to the High Court of Madras in OP (FC). No.
273/2021, arguing that the Petitioner had remarried after the Family Court’s decision
and that this was detrimental to the child’s well-being. The High Court allowed the
appeal, stating that the Respondent was better suited to protect the child’s interests
and impart education to him. The copy of the order of the High Court has been
attached and marked herewith as ‘Annexure – C.’

5. Aggrieved by the above-mentioned order of the High Court of Madras passed on

24.07.2021, the Petitioner has preferred this Petition before this Hon’ble Court.

In light of the aforesaid facts, the following questions have arisen:

a. Whether the High Court erred in allowing the appeal on the ground of the petitioner’s
remarriage, which is not a relevant factor in determining the custody of a minor child?

b. Whether the High Court erred in not considering the welfare and best interests of the
child as the paramount consideration while deciding custody?

c. Whether the High Court erred in not giving an opportunity to the child to express his
willingness in the matter of custody, thereby violating the principle of natural justice?
d. Whether the High Court erred in considering the financial status of the parties as the
sole determining factor in deciding custody, rather than considering the overall welfare
of the child?

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 GROUNDS

1. The High Court erred in law by holding that the remarriage of the appellant was a ground
for depriving her of custody of her child. The High Court failed to consider the welfare of
the child as the paramount consideration in determining custody and failed to take into
account all relevant factors in determining the child's best interests.

In Gaurav Nagpal v. Sumedha Nagpal (2009), the Supreme Court held that the paramount
consideration in determining custody of a child is the welfare of the child. The court must
consider all relevant factors and assess the best interests of the child. In Elizabeth
Dinshaw v. Arvand Shaw Dinshaw, (1987) 1 SCC 42, it was emphasised that when is
confronted with a question relating to the custody of a minor child, the guiding factor
cannot be the legal rights of the warring parties. The sole and pre-eminent criteria that
ought to weigh with the court is what would best serve the interest and welfare of the
minor.

2. The High Court erred in fact by holding that the father was better suited to protect the
child’s interests and impart education to him. The High Court failed to consider the fact
that the child had been living with the appellant (the mother) for several years and that
she had been taking care of him. The High Court erred in law by not considering the fact
that the Appellant is the natural mother of the child and that the child has been in her
custody for a significant period. There is a presumption that the natural parent is the most
suitable person to have custody of the child unless there are compelling reasons to the
contrary.

In Rosy Jacob v. Jacob A. Chakramakkal 1973 1 SCC 840, the Supreme Court held that
the welfare of the child is of paramount importance and that the court should consider the
child’s past and present conditions, the potential of the parties to provide the best possible
care for the child, and the wishes of the child (if he or she is old enough to express a
view).
In Anjali Kapoor vs. Rajiv Baijal (2009) 11 SCC 422, the Supreme Court held that the
natural parent is generally the most suitable person to have custody of the child, and there
must be compelling reasons to deny custody to the natural parent.

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3. The High Court erred in law by not considering the fact that the child’s wishes were not
taken into account in determining custody. The High Court did not appoint a counselor or
an expert to interview the child and provide a report on his best interests.

In Gaurav Nagpal v. Sumedha Nagpal (2009), the Supreme Court held that the court
should take into account the wishes of the child, if he or she is old enough to express a
view, and also consider the report of a counselor or an expert in determining the child's
best interests.

4. The High Court erred in law by not considering the fact that the appellant’s remarriage
did not affect her ability to care for her child. The High Court did not consider the fact
that the child's welfare would not be affected by the appellant’s remarriage.

In Suman Kapur v. Sudhir Kapur (2009), the Delhi High Court held that the remarriage of
the mother was not a ground for depriving her of custody of her child if the child’s
welfare was not affected. The court held that the welfare of the child should be the
paramount consideration in determining custody.

5. That this Hon’ble Court has the jurisdiction to entertain and try this Petition.

6. That the Appellant craves leave to alter, amend, or add to this Petition.

7. That the Appellant seeks leave to rely on documents, a list of which, along with true
typed copies has been annexed to this Petition.

8. That this Petition has been made bona fide and in the interest of justice.

9. That the Appellants have not filed any other Petition before this Hon’ble Court or before
any other Court seeking the same relief.
10. That in the facts and circumstances of the present case the petitioner is left with no other
equally, efficacious, alternative and speedy remedy available, expect to approach this
Hon’ble Court for Justice.

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 PRAYER

In the facts and circumstances, the Petitioner most respectfully prays that your Lordships may
be graciously pleased to allow this appeal and as follows:

1. To set aside the order passed by the High Court and to restore the order of the family
court granting her custody of the child.

2. To order that the welfare of the child be the paramount consideration in determining
custody and to consider all relevant factors in determining the child's best interests.

3. To declare that the Petitioner’s remarriage is not a ground for depriving her of custody of
the child.

4. To direct the trial court to appoint a counsellor or an expert to interview the child and
provide a report on his best interests.

5. Any other relief that the court deems fit and proper in the circumstances of the case.

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 VERIFICATION

Verified at Chennai on this, the 25th day of August, 2021 that the contents of the above appeal
are correct to the best of my knowledge and belief.

PETITIONER

THROUGH

Simran Pradhan
ADVOCATE

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